Please note that the content below is only applicable in the province of Ontario.
In Ontario, the rules relating to the execution of Wills are set out in the Succession Law Reform Act (“SLRA”) , which states that, subject to limited exceptions (such as holograph Wills, which are Wills made entirely in the testator’s handwriting, or Wills made by certain members of the Canadian Forces, naval, land or air force or sailors while on active duty), in order for Wills to be valid, they must be signed by the testator (or on their behalf) in the presence of two independent adult witnesses. The rules relating to the execution of Powers of Attorney in Ontario, as set out in the Substitute Decisions Act (“SDA”), also require that Powers of Attorney be signed by the grantor in the presence of two witnesses.
As the provincial and several municipal governments started recommending or mandating social distancing and self-isolation protocols, estate planning lawyers across the province were faced with the issue of how to meet the “in the presence of” requirement when it comes to witnessing Wills and Powers of Attorney while maintaining the safety of all parties involved.
The province of Ontario declared a state of emergency on March 17, 2020 (which has since been extended to May 12, 2020), pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act, which allowed the province to issue several temporary emergency orders for the purpose of protecting the health, safety and welfare of Ontarians. One such emergency order, being Order in Council filed as O. Reg. 129/20, issued on April 7, 2020 (the “Emergency Order”) allows for the virtual witnessing of Wills and Powers of Attorney as long as the following requirements are met:
- The person executing their Will or Powers of Attorney and both witnesses can see, hear and interact with each other in real time by way of “audio-visual communication technology” (by way of video conferencing); and
- One of the witnesses is a licensee (a lawyer or paralegal) of the Law Society of Ontario.
The option to virtually witness Wills and Powers of Attorney pursuant to the Emergency Order was a welcome change, but had raised some practical questions (such as whether “counterparts” or electronic signatures should be allowed, or the proper date of documents if the testator/grantor and witnesses are signing on different dates) which were debated and discussed by estate planning lawyers across the province in a number of seminars and discussions aimed at establishing consistent “best practices” in the weeks following April 7, 2020.
Update as at April 23, 2020: In the evening hours of April 22, 2020, the Emergency Order was amended to clarify that Wills and Powers of Attorney may be executed in counterpart (with the testator/grantor and each witness, while video-conferencing, executing the same version of the Will or Power of Attorney at the same time, and those multiple signed versions put together would constitute one original), which can help simplify some of the practical considerations raised above and potentially reduce the need for multiple virtual signing meetings on different dates (prior to execution in counterparts being explicitly permitted, the general consensus was that after a testator/grantor signed their Will and/or Powers of Attorney while being witnessed virtually, those same original signed documents would need to be delivered to the first witness, who would need to then sign the documents by way of a second video-conference with the testator/grantor. If the two witnesses were not in the same location, there would also be a need for a third video-conference with the testator/grantor once the original documents were sent to the second witness).
One thing is for sure – this area is constantly evolving, and we anticipate that additional clarification and best practice guidelines will continue to be provided and established. This blog entry will be updated to reflect any major updates.
What We Know So Far:
- The Emergency Order is not retroactive, meaning that any Wills or Powers of Attorney executed by way of virtual witnessing prior to April 7, 2020 would not be valid and should be re-executed;
- The Emergency Order does not alter or amend the SLRA or SDA;
- The ability to virtually witness Wills and Powers of Attorney pursuant to the Emergency Order is only possible while the state of emergency is in place, and the Emergency Order itself expires every two weeks (next expiry date: June 9, 2020), unless it is specifically extended;
- Allowing lawyers to virtually witness a client’s signing of their Will or Powers of Attorney does not in any way reduce a lawyer’s obligation to ensure that the other formalities surrounding the proper execution of Wills and Powers of Attorney (proper capacity, no undue influence, etc.) are being met; and
- Update on April 23, 2020: The Emergency Order was amended to clarify that Wills and Powers of Attorney may be signed by the testator/grantor and their witnesses in counterpart.
What Does This Mean for You?
If you do not have Wills or Powers of Attorney, or if you need to update the ones you have, you can still do so safely and without leaving the comfort of your own home as long as you have access to a computer, tablet or smartphone with video conferencing capabilities and an internet connection. Contact us today to request a consultation with one of our Estate Planning lawyers or for further information.